Motion Practice
Author | Rebecca Ann Taylor |
Profession | Writer and attorney |
Pages | 221-254 |
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Motions to Dismiss
As mentioned previously in discussions of Iqbal, hearings on motions to
dismiss have taken on an entirely new meaning, as now they can be de facto
summary judgment hearings in many cases. And as previously emphasized,
a plaintiff must draft her complaint in anticipation of motions to dismiss
based on qualied immunity. As the following case demonstrates, however,
such immunities are not absolute, and once again, they highly depend on
the facts of the case and who is telling the truth. These days, just like with
summary judgment hearings, the plaintiff should bring some solid evidence
to the table along with the complaint to escape having the case thrown out
based on an initial motion to dismiss and to keep the trying of facts prop-
erly within the province of the fact nders at trial.
The Garcia v. Bloomberg case arose out of the October 1, 2011, Occupy
Wall Street (OWS) march whereby the protesters were arguably entrapped
on the Brooklyn Bridge by the New York Police Department (NYPD)
and then arrested in violation of their constitutional rights.1 The initial
complaint was led on October 4, 2011, and then amended to include
additional claims and plaintiffs, but the rst amended complaint was
rejected by the court due to improper material.2 The plaintiffs then led
1. 11 Civ. 6957 (JSR) (S.D.N.Y. 2012).
2. Id. at *2.
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Motion Practice
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a second amended complaint that the defendants sought to dismiss.3 The
defendants argued that because they were protected by qualied immu-
nity, the plaintiffs failed to state a cause of action for violation of their
constitutional rights.
4
The court ultimately dismissed the plaintiffs’ claims
against New York City, Mayor Michael Bloomberg, and Commissioner
of the New York City Police Department Raymond Kelly, but upheld all
of the claims against the arresting ofcers.5
In the wake of the Iqbal decision, the Garcia plaintiffs no longer enjoyed
the previous presumption of truth for their complaint allegations: “When
deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)
(6), the court must accept all factual allegations in the complaint as true
and draw all reasonable inferences in favor of the plaintiff.”
6
The court was
now required to determine whether the complaint “contain[s] sufcient
factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”7
Under the new Iqbal standard, a plaintiff can no longer state legally
sufcient factual allegations and causes of action with “mere conclusory
statements” and “formulaic recitations” of claim elements.8 Conclusory
statements will not enjoy the presumption of truth and will be disregarded
before the court determines whether a claim is plausible.9
But what does the plausibility standard really mean? The Iqbal decision
was intentionally vague on this point but provided a subjective stan-
dard: “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specic task that requires the reviewing court to draw
on its judicial experience and common sense.”10 The court also dened
plausibility as “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”11
3. Id.
4. Id. at **9–10.
5. Id. at *29.
6. Dunmars v. City of Chicago, 22 F. Supp. 2d 777, 780 (N.D. Ill. 1998).
7. Garcia, 11 Civ. 6957 (JSR), at *9 (citing Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)).
8. Id.
9. Id.
10. Id. (citing Iqbal, 129 S. Ct. at 1937).
11. Id. at **9–10.
C
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In beginning its analysis of whether the defendants’ claim of qualied
immunity could defeat the plaintiffs’ claims at the pleading stage, the Gar-
cia court claried the test for determining whether qualied immunity is
present. A police ofcer is entitled to qualied immunity when probable
cause exists for an arrest, and reviewing courts “must consider those facts
available to the ofcer at the time of arrest and base their analyses on the
‘totality of the circumstances.’”12
However, the Garcia court discussed another element often disregarded
by other courts and authorities when determining whether police ofcers
are entitled to qualied immunity: First Amendment considerations in the
context of peaceful demonstration.
13
The way that the Garcia court framed
the issue is a game changer and a refreshing change in the contemporary
rubber-stamping mill of approval for qualied immunity:
[W]hen, as here, the defense of qualied immunity is raised as part of a
motion to dismiss, the question the Court must then answer is: would
it be clear to reasonable police ofcers, in the situation the defendant
ofcers confronted, that they lacked probable cause to believe (i) that
the plaintiff demonstrators had committed a crime and (ii) that the
plaintiff demonstrators had received fair warning?14
In these situations, Supreme Court law is well settled that “laws and regula-
tions must ‘give citizens fair warning as to what is illegal.’”15 Generally it is
not the legislature who provides this fair warning but police ofcers close
to the situation whose contemporaneous decisions often have the effect of
expanding or restricting citizens’ available rights according to police whim.
16
The Garcia court cited to a 1965 Supreme Court decision, Cox v. Loui-
siana, in which police “told demonstrators that, if they protested across the
street from a courthouse, they would not violate a prohibition on protest-
ing ‘near’ the courthouse.”17 However, the police later arrested some of the
12. Id. at *11 (citing Caldarola v. Calabrese, 298 F.3d 156 (2d Cir. 2002)).
13. Id.
14. Id. at *14.
15. Id at *11 (citing Cox v. Louisiana, 379 U.S. 559 (1965)).
16. See id. at **11–12.
17. Id. at *12 (citing Cox, 379 U.S. 559).
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